Americans’ personal data are under scrutiny by government spy agencies, commercial search engines and a vast rabble of phishers, sniffers and black-hat hackers

By
Lee Sherman

Posted on
May 28th, 2014

Illustration: Richard Mia

Just about every child has lain in the grass, looked up at the clouds and traced the shapes of lambs, castles and pirate ships. But these days, there’s a new kind of cloud, one made not of droplets but of data — one that conjures images far less benign than the “bows and flows of angel hair” Joni Mitchell sang about in a simpler age.

For this new cloud, the best imaginary shape might be a giant pair of eyes.

“In human history, there’s never been more surveillance of individuals by the state and by private corporations than there is today,” said Oregon State University historian Christopher McKnight Nichols in April when he appeared on National Public Radio’s Philosophy Talk.

Not so long ago, cloud computing — the collection, processing and storage by companies such as Amazon, Google and Microsoft of data generated by cellphone signals, computer searches and credit card sales — would have seemed as sci-fi as cryogenic revival, as out-there as lunar colonization. But now, Internet-based computing is as ubiquitous as blue jeans, as ordinary as PB&J. Within its very commonness lurks its insidiousness. Most Americans, completely comfy with their mobile phones, laptops, desktops, pads and GPS devices, go about their daily lives blithely unaware that their calls are being archived by the U.S. National Security Agency (NSA) in the war on terrorism, that their Web searches are being mined by marketers and that their movements are being tracked day and night by cell towers and satellites.

That’s largely because the digital outputs of electronic devices flow invisibly among “virtual servers” that can send and receive data, unseen, from place to place, nation to nation, continent to continent. Just about anything in the digital universe’s zettabyte of data (give or take a gigabyte) can be snatched (or purchased) by a government intelligence agent, a “black-hat hacker,” a for-profit company, an email “phishing” scammer or a digital swindler “sniffing” for wireless signals in a coffee shop.

Since whistleblower Edward Snowden’s recent revelations of government spying and large-scale data mining, journalists, pundits and scholars have ramped up their commentary about the intrusiveness of today’s 24/7 surveillance. Some have gone so far as to invoke George Orwell’s “Big Brother.” Philosophy Talk played on that theme rather ominously in the title for its April taping at Oregon State, “The New Surveillance State: Big Brother Grows Up,” where Nichols was the featured guest.

OSU business professor Nancy King, a nationally recognized scholar in the field of consumer privacy, echoes the sentiment. “The thing that pops to my mind is the extreme example of Orwell’s 1984, where everyone has a video screen inside their house that watches every move they make,” she says. “We have Google doing something very much like that. We have government doing it, too. The extent of surveillance in our society is incredible.”

What does this digital Big Brother mean for the privacy of Americans as consumers, citizens and human beings? That’s the question Nichols, King and other faculty at OSU are digging into as they investigate the historical, contemporary and future concepts of privacy in the United States. Below are some observations distilled from interviews with five scholars: historians Ben Mutschler, Marisa Chappell and Christopher Nichols in the College of Liberal Arts; computer scientist Carlos Jensen in the College of Engineering; and consumer privacy expert Nancy King in the College of Business.

BEN MUTSCHLER: “Emergence of the self”

Secrecy and autonomy of correspondence, journals and even flesh-and-blood bodies have shifted in surprising ways as perceptions of privacy have evolved over the past three centuries. As he studies 18th-century American life, Ben Mutschler scrutinizes attitudes toward letters, diaries, body fluids — even bedfellows.

Back in those days, letters often were public performances, not unlike Facebook postings today, he notes. Recipients would read them aloud at social gatherings for amusement and discussion. Diaries, rather than records of inner musings — what Mutschler calls “intimate self-disclosures” — were matter-of-fact jottings about daily events and transactions. Bodily functions that Americans today regard as intensely private were routinely on public display. Young George Washington, for example, was instructed to urinate away from others and avoid spitting on the person beside him, two of the 100-plus rules listed in his boyhood handbook of etiquette. And in contrast to today’s motel rooms with deadbolts and electronic key cards, a weary 18th-century traveler might awake in his lodgings to find a stranger sharing his bed.

“What we would take to be privacy issues might not have been construed in the same way in the 18th century,” he says. “The social and cultural contexts were quite different. If the NSA were to come in today and take your diary, we’d say it’s a real violation. But in the 18th century, diaries were often a register of social exchanges or bartering — who visited whom, when the eggs were delivered, that kind of thing.”

In fact, the whole notion of “bodily integrity,” of each human as a “self-activated person who can do his or her own thing,” has emerged fairly recently in human history, according to Mutschler. “Historians date the emergence of the self — the whole discourse about a person being an individual with free agency — taking place over hundreds and hundreds of years.”

MARISA CHAPPELL: “Not an enumerated right”

Like the concept of selfhood, privacy is a fairly recent notion, especially in American jurisprudence. Now, with the lines between the physical world and the virtual world as blurry as a dirty windshield in a blinding rain, incipient privacy rights are murkier still.

“Privacy is not an enumerated right,” says Marisa Chappell, a scholar of 20th-century U.S. history. “It’s a concept we create through law and sociocultural understandings.”

Privacy, she points out, is not explicitly spelled out in the U.S. Constitution. The closest thing to a Constitutional guarantee to privacy is the Fourth Amendment, which protects Americans from warrantless government searches of their homes and seizures of their stuff. But the amendment was written well before anyone dreamed of valuable personal information floating around in the air instead of being locked in a vault or stashed under a mattress. Likewise, prohibitions against wiretaps seem quaint in a wireless world.

“Law has to constantly adapt to changing technology,” says Chappell. “We’re making it up as we go along.”

In the 1973 landmark Roe v. Wade decision, for example, the U.S. Supreme Court invoked an implied right to privacy under the “penumbra” of the 14th Amendment guaranteeing due process in its opinion granting abortion rights to women. But state legislatures and lower courts are constantly challenging this fragile right.

“Privacy,” says Chappell, “is a continual source of debate and negotiation, of weighing in on the boundaries. I don’t think Americans are ready or willing to give up a private zone. But technologically, how can it be secured? I don’t know. These are questions of law. They’re questions of policy. They’re questions of technology.

“I don’t envision a dystopian future, myself. I’m not such a pessimist.”

CHRISTOPHER McKNIGHT NICHOLS: “Abridging civil liberties”

Christopher Nichols echoes Chappell’s point about the legal lag time. “Technology tends to outpace the law,” he says. “Constitutional law hasn’t caught up.”

Rights to privacy, speech, due process — even physical liberty — often succumb in the face of enemies, real or imagined, observes Nichols, an historian of U.S. relations with the world. When people are afraid of terrorists, for example, many readily relinquish their privacy in exchange for the sense of greater safety.

“We often abridge civil liberties in wartime,” he says. “You can look at conflict after conflict in American history, and you’ll find abridgements of civil liberties that citizens willfully endorse. The Civil War is a great example. Lincoln suspended habeas corpus, the foundation of American civil law.” The list goes on.

The American public’s tepid outrage over Snowden’s NSA leaks fits this pattern, he argues. People tend to be sanguine about government spying if they think it can stop another 9/11. But apathy about privacy is a slippery slope. What happens if today’s existential threat becomes a threat without end?

Whether history judges Snowden as a patriotic hero or a dastardly traitor, his revelations have contributed to the transparency that keeps government accountable and safeguards individual privacy.

“These kinds of leaks are very important for open democracy,” Nichols asserts. “Ideally, citizens should be informed directly by the government, in a proactive way, about surveillance activities. But that tends not to be the case. So these leaks help us to know more.”

CARLOS JENSEN: “As if no one is eavesdropping”

Carlos Jensen is really glad Facebook wasn’t around when he was growing up. Digital cameras, too. “Thank the Lord,” he says, laughing.

“When you’re putting your life out there, very few people think about the long-term consequences,” notes Jensen, who studies online communications and communities. “In most likelihood, anything and everything you send over services like Google or, say, your employer’s email is being logged, potentially forever, in a way that allows instant searching and instant correlation. Our thinking and our attitudes and the way we live our lives really haven’t evolved to compensate for that. We still conduct business as if no one is eavesdropping on us.”

For Jensen, even more troubling than NSA data mining, which he calls “a gross invasion of privacy,” is corporate amassing of user information around the clock, seven days a week, no breaks for holidays.

“Honestly, what keeps me up at night is that all our laws and all our regulations are about what the government can and cannot do,” says Jensen, who is working on browser privacy tools that are fast and easy to use. “But there’s virtually no regulation that says what Google may or may not do.”

Jensen teaches a class on computer ethics. One of the questions he poses to his students is this: “Who knows you the best?” After they ponder, he tells them: “Chances are, it’s not your family. Chances are, it’s not your friends. Chances are, it’s Google.”

NANCY KING: “The wild, wild West”

Nancy King, too, worries deeply about the unfettered access of governments and corporations to people’s personal information. While she’s quick to clarify that she’s “quite pro-business,” she rues the lack of a legal framework to reign in privacy abuses and tighten up security.

“I appreciate the business value of analyzing consumer data and creating targeted products and services for customers,” she explains. “But there’s almost no protection in the U.S. for consumers’ privacy, particularly their information privacy. The technology is way out ahead of our ability to even understand what we need to do to protect ourselves from identity theft, unfair price discrimination and other harms.”

What’s urgently needed, King argues, is a baseline privacy law that tells businesses what they can and can’t do with data. “Once we have a foundational law that establishes basic informational privacy rights,” she says, “the more egregious privacy abuses likely will be reduced. But right now it’s a free-for-all. It’s the wild, wild West.”

King also frets about Big Brother’s crimping effect on creativity, innovation, spontaneity and originality — those most brilliant sparks of the human spirit, which flame freely only in an open society. “People don’t develop the same way if they’re constantly under surveillance by others,” she warns. “If you’re being watched by people, watched by cameras in the street, watched by computers that monitor your every keystroke and track your online behavior, that changes how you develop and act.

“It’s the essence of being human to have some privacy about ourselves. Our laws need to reflect this fundamental truth.”